In the wake of the BBC drama on the Jeremy Thorpe trial, Geoffrey Robertson QC wrote an illuminating piece about the contempt proceedings brought against the New Statesman for its interview with a Thorpe trial juror, who had explained that the jury felt obliged to acquit once the performance-related payment agreement with Bessell and The Sunday Telegraph had been revealed to them.

The magazine was acquitted because the common law did not prohibit disclosure of jury deliberations. But the magazine’s acquittal and the lacuna in the common law led to swift the enactment of section 8 of the Contempt of Court Act 1981 which protected the confidentiality of the jury room with a blanket ban on disclosure of “any particulars of statements made, opinions expressed, arguments advanced or votes cast” in the course of jury deliberations.

Many justifications have been advanced over the years for the blanket ban in section 8: jurors must feel that they can express their views, without fear of ridicule or recriminations; the finality of the jury’s verdict is undermined unless there is such a ban which prevents the reopening of trials in subsequent trial by media; jurors might be intimidated or corrupted to make false disclosures if their revelations about their deliberations were admissible on appeal.  Others were equally firm that a miscarriage of justice was not a price worth paying for jury confidentiality and that defined exceptions were needed.

Many years later, in 2013, the Law Commission conducted an extensive consultation on whether section 8 should be amended. Some surprising differences emerged: the Criminal Cases Review Commission, for example, considered itself so bound by section 8 so that it could not consider evidence relation to jury deliberations even where conducting an investigation as directed by the Court of Appeal. Senior Court of Appeal judges, however, took the opposite view.  Clearly, it was unsatisfactory that the primary body for investigating miscarriages of justice viewed the law differently to the Court of Appeal.

Following the consultation, the Law Commission recommended a modest relaxation of section 8. The Commission proposed that that jurors who genuinely believed they are exposing a miscarriage of justice could go to a court official, the police or CCRC and reveal their deliberations to that extent – even after verdicts have been returned. That was a progressive move but there was concern that it might result in an outbreak of juror remorse from dissenting jurors. And how would ‘miscarriage of justice’ be defined? In the absence of any specific evidence that jurors would be reluctant to speak to the official bodies in confidence, the Commission did not propose that revelation to the media by jurors be permitted.

Somewhat predictably, these reforms were not accepted by the Government, but some important new exceptions to section 8 were nonetheless created in the Criminal Justice and Courts Act 2015.

Section 8 was formally repealed but effectively replicated in section 74 of the 2015 Act.  Breaching jury confidentiality is now a specific criminal offence under section 20D of the Juries Act 1974. But there are specific exceptions to that offence to permit disclosures of jury deliberations by the trial judge or by a reporting juror to specified body (e.g. police officer, Registrar or judge of the Court of Appeal) in order for an investigation into possible juror contempt or the new juror offences to take place. So, for example, a juror who reports that other jurors used a Ouija board or tossed a coin in order to determine their verdicts, or that racism supplanted true deliberations would not commit an offence by that revelation, if made to a specified person. But there is no general ‘miscarriage of justice’ defence for breaching jury confidentiality.

So although the law has developed since the Thorpe trial, there is still no prohibition on media payments of the type agreed with Bessell (unless they can be shown to amount to an attempt to pervert the course of justice) and were the Thorpe juror and New Statesman prosecuted today, they would have no defence to the new criminal offence.  Plus ça change?

Alex Bailin QC is a member of Matrix.